McGray v. Cobb
| Decision Date | 23 April 1915 |
| Docket Number | 18,891 - (27) |
| Citation | 152 N.W. 262,130 Minn. 434 |
| Parties | FRANK E. McGRAY v. S. G. COBB and Others |
| Court | Minnesota Supreme Court |
Petition on Rearguement Denied July 23, 1915
Action in the district court for Ramsey county against S. G. Cobb Hugh Beals and D. G. Brunjes to recover $12,800 for malpractice. The case was tried before Olin B. Lewis, J., who when plaintiff rested denied separate motions of defendants to dismiss the action, and a jury which returned a verdict for $1,250 in favor of plaintiff. From an order denying their motion for judgment notwithstanding the verdict or for a new trial, defendants appealed. Affirmed as to the order denying judgment, and reversed as to the order denying a new trial.
Action for malpractice -- questions for jury.
1. The evidence is held to make the alleged failure of an attending physician to use the skill and care of the ordinary practitioner of the same school in the treatment of mastoiditis a jury question, and also whether loss of hearing in the ear involved resulted therefrom.
Evidence admissible -- opinion of expert.
2. No error is found in permitting plaintiff to state the pain or tenderness experienced in the affected parts, since he had already testified that, while being treated, he described to the physician as well as he could his condition in that respect. Nor was there prejudicial error in refusing to strike out the opinion of an expert witness based upon the testimony of plaintiff alone, the additional testimony of his wife being not materially different.
New trial -- verbal inaccuracies in charge.
3. Verbal inaccuracies in the recital of certain evidence in the charge to the jury, to which attention of the court was not called before the jury retired, do not ordinarily furnish a ground for a new trial.
Partnership -- question for jury.
4. The evidence was such that the court properly submitted the question of the liability of all the defendants as partners.
July 23, 1915.
New trial.
5. For the error in submitting to the jury one claim of improper treatment upon which the evidence does not warrant a finding that the attending physician failed to use the skill and care of the ordinary practitioner a new trial is granted.
Barrows, Stewart & Ordway, for appellants.
W. B. Douglas, for respondent.
Defendants appeal from an order denying their motion in the alternative for judgment or a new trial in this action wherein a verdict was rendered against them for malpractice.
The main contention of appellants is that the evidence does not support a recovery. But if not sustained in that, they urge as grounds for a new trial error in two rulings relating to the admission of evidence and in certain portions of the charge.
On January 15, 1913, plaintiff, who for a day or two had suffered severe pain in his left ear, called the defendant Dr. Beals to treat him. Dr. Beals, a duly licensed homeopathic physician and surgeon, came and prescribed for plaintiff. The next day the doctor made a closer examination and undoubtedly located the difficulty as an inflammation of the middle ear. He however claims there was then no evidence of such pus formation that good practice would require a puncture of the ear drum to drain the infection. The next morning the pressure of the pus ruptured the drum. The drainage thus opened greatly relieved the pain and reduced the fever. But after three or four days, as the discharge from the ear decreased, the pain and temperature returned and did not yield to the treatments given. Plaintiff claims that Dr. Beals during the latter days of January and the first part of February attributed the pain to neuralgia and treated accordingly. On February 10 plaintiff, despairing of aid from Dr. Beals, went to Dr. Spratt of Minneapolis who diagnosed the case as mastoiditis, and the next day performed an operation to drain the mastoid process. The inflammation was found to be deep seated, having affected and penetrated the mastoid cells clear to the lining of the brain. Two subsequent incisions into the skull in the vicinity of the ear were found necessary before the affected parts could be drained and placed in condition to heal. During all the time of Dr. Beals' treatment, except for the two or three days next after the rupture of the ear drum, plaintiff testifies to having experienced intense pain. The result of the ailment was that plaintiff was left in a weakened condition; he could not attend to his business for months; and the hearing in the left ear was entirely destroyed.
The negligence charged against the physician is improper diagnosis and treatment, especially in failing to provide an adequate escape for the pus found in the middle ear by opening and keeping open a sufficient drainage aperture in the ear drum when he first was called, and in failing to operate on the mastoid process when it became evident that therein existed a serious infection which did not drain through the ruptured ear drum. An examination of the record leads to the conviction that there is evidence tending to establish that Dr. Beals, in the treatment of plaintiff, did not use the care and skill which would be used by the ordinary homeopathic practitioner. And while this evidence is not very specific or positive as to the exact time when a different treatment than the one given should have been had yet we deem it of sufficient strength and certainty to entitle a jury to pass on the issues made by the pleadings. It would serve no useful purpose to set out or discuss the testimony given. Adroit cross-examination served to draw from plaintiff's medical expert certain answers which...
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